A few years ago, Michigan State University law professor Brian C. Kalt was writing a paper on the intricacies of the Sixth Amendment, when he realized that there might be places in the United States where it’s difficult or impossible to select a suitable jury. Why? Because the Constitution is very clear and very picky about juries:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…
So, if the government wants to convict you of a crime (and you don’t waive your right to a jury trial), they have to pick a panel from the people that live in both the state and federal court district where the crime happened. Normally, that isn’t a problem, because district boundaries encompass states in their entireties and include populated areas from which to select jurors.
But Professor Kalt decided to take a careful look at the maps to see if there are any places without enough residents to form a jury. In his search he was surprised to find a place where the stars align to make for an impossible trial: a 50-square mile strip of land in Idaho that runs along the western edge of Yellowstone National Park.
Yellowstone National Park predates statehood of the states it’s in (Wyoming, Montana and Idaho), and when those states were formed, they gave the federal government all jurisdiction over the lands that make up the park. You can’t be convicted of a state crime in Yellowstone. Federal laws apply there and you can still be arrested by federal law enforcement and tried in a federal court.
Congress, however, made a small mistake when drawing the district court boundaries for Yellowstone. Probably out of laziness, they put the entire park in the Wyoming District Court’s jurisdiction. If you commit a crime in the Wyoming part of the park, there are plenty of people living in the state who can serve as jurors. So don’t pull a Yogi and steal anyone’s pick-a-nic basket there.
If you happen to be in the parts of the park that lie outside of Wyoming, however, the district court has to follow the Sixth Amendment when picking your jury. That means the jurors have to live in both the state and the district where the crime occurred. For the parts of the park that are in Montana, that’s no easy task, but it’s at least technically possible, as a few people live there.
Oddly enough, this loophole hasn’t ever been tested, despite a good opportunity to do so.
A poacher who was caught illegally taking an elk in the Montana portion of the park tried to raise the ‘Zone of Death’ issue. The Wyoming District Court ruled that there was no case law supporting his motion to dismiss the case on the grounds that a jury would be impractical to form.
But he didn’t go to trial — he took a plea deal — and thus didn’t demand a constitutionally-compliant jury be formed. So the question of whether he could be tried by a Wyoming jury in Montana was never tested by courts at any level. He also waived his right to appeal based on the Zone of Death argument, so that one instance will never get to be a test case.
The section of the park that lies in Idaho, though, is even less hospitable to jury trials. It has zero human residents. So, in that small strip of land, the state government can’t try you for state crimes and there’s not population from which the federal government can select a jury that respects the accused’s Sixth Amendment rights.
A motion to dismiss probably wouldn’t fly any more than it did in the Wyoming part of the park, but it seems very unlikely that a decision by a Wyoming jury for a crime committed in Idaho or a decision by an Idaho jury that’s not in the Wyoming district would survive on appeal, assuming a judge is ballsy enough to apply the law and doesn’t lean on the defendant to take a plea deal and keep that hot potato out of his or her lap.
That’s why Kalt nicknamed that area the “Zone of Death.” In subsequent writings, he tells of his attempts to get Congress to act and move the district boundaries to make trials in the Zone of Death possible. He even addresses the nearby Montana non-test case, showing that the loophole in the law is still wide open, having never been shut by statute or case law.
Don’t Go Strangling Someone in Far Eastern Idaho
While Kalt discovered this legal no-man’s land in Idaho, it was neither his goal nor mine to encourage people to do immoral things in that narrow strip of land. And by morality, I’m not talking about the sexual ethics, Christianity values or the various “microaggressions” you can commit under progressive ideology. I’m talking about blatantly immoral violent acts, such as murder or beating someone half to death without justification (like self defense).
Seriously, don’t go killing someone at Yellowstone and say Jennifer sent you, because I didn’t.
It would be interesting, however, to commit some malum prohibitum violation of the law in the Zone of Death, though. I’m not a lawyer and you definitely shouldn’t take legal advice from me. So, don’t get into any trouble based on what I think is an interesting legal argument. Nobody should to risk time in federal prison just to make a point.
What we should really do, though, is raise the specter of an “Idaho Freedom Zone” where the Karens of Brady, Giffords and Everytown know people can do scary things like build “ghost guns” or make unregistered machine guns and possibly get away with it (without actually doing it). That would probably be enough to spur Congress to do what they should have done in the first place and fix the loophole that created the Zone of Death in the first place.
The possibility of someone getting away with murder obviously wasn’t enough to prompt Congressional action. The possibility of people having too much freedom and violating the NFA, however, would probably do the trick.
If they fix it now, though, after all these years, because of something as trivial as someone putting a pistol upper on a rifle lower, we’d be able to rub their noses in it forever. And wouldn’t that be fun?